Thursday, 19 November 2009

De Facto Moratorium on Extraditions to Kazakhstan

Today the Court issued its judgment in the case of Kaboulov v. Ukraine (Appl. no. 41015/04) which in effect imposes a moratorium on extraditions to Kazakhstan on all ECHR state parties, unless credible assurances of safety would be offered by Kazakhstan. The applicant is a Kazakh national suspected of murder. In 2003 the applicant was arrested in Ukraine on the basis of an international arrest warrant. He applied to the European Court to prevent his extradition, amongst others complaining that he would face the risk of ill-treatment during detention and capital punishment.

Basing itself on reports of the Amnesty International, a UN rapporteur, the International Helsinki Federation, and the US State Department, the Court concluded that extradition would not violate the right to life, since there had been a moratorium on enforcement of the death penalty and that death sentences had been commuted to life imprisonment. By contrast, since there was uncontested information that torture and ill-treatment were regular occurences in Kazakh prisons as well as generally very poor prison conditions. Since this was a general situation, it did not matter that the applicant could not prove that he was personally and specifically in danger, since (para. 112) "it appears that any criminal suspect held in custody runs a serious risk of being subjected to torture or inhuman or degrading treatment, sometimes without any aim or particular purpose. Thus, the Court accepts the applicant’s contention that the mere fact of being detained as a criminal suspect, as in the instant case, provides sufficient grounds to fear a serious risk of being subjected to treatment contrary to Article 3 of the Convention." Extradition would thus violate article 3 ECHR.

One may note that the Court last year ruled more or less on the same issues, but then in respect to Turkmenistan. See my earlier post here. It seems that large parts of Central Asia are turning into no-go areas. If these countries ever want to have suspects extradited to them from any ECHR state party, they will have to get their act together and improve both their combat against torture and the conditions of their detention facilities. If this would indeed happen in the future, this would be an interesting de facto extraterritorial effect of Convention norms. The only possible alternative is credible assurances by Kazakhstan that the individual in question would not face the risk of treatment contrary to Article 3, but these assurances would have to be very credible in order for the Court to accept that they sufficiently countered the generally existing situation.